Date:
20060215
Docket:
IMM-5168-05
Citation:
2006 FC 202
Montréal, Quebec, February 15, 2006
PRESENT: THE HONOURABLE MR. JUSTICE
MARTINEAU
BETWEEN:
DILSHER
SINGH TURNA
Applicant
and
THE
MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial
review of a decision by the Immigration and Refugee Board, Refugee Protection
Division (the Board), dated July 27, 2005, ruling that the applicant does not
have refugee status and is not a person in need of protection within the
meaning of sections 96 and 97 of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27 (the Act).
FACTUAL CONTEXT
[2] The credibility of the story given
by the applicant is not at issue. He is a citizen of India and practices the
Sikh religion. He alleges that he has a well-founded fear of persecution by
terrorists of the Babar Khalsa (BK) group because of his perceived political
opinions.
[3] According to the record, the
applicant’s younger brother, Parmjit Singh, was an active member of BK. He had
to go into hiding in India because of his links with BK. To exculpate him, and
with the assistance of a retired police officer, his brother went to the police
asking that an investigation be opened. After he had been detained for five
days, the police decided to release him, without a police escort, having
concluded that he had not been involved in any crime. He returned to live on
the family farm. The applicant alleges that the BK members from then on considered
his brother to be a traitor. In fact, his brother was murdered in May 2002. The
applicant went to the police station to file a complaint and asked the
authorities to open an investigation. They refused to accept his complaint on
the ground that his brother was an activist and that his death resulted from
the animosity that prevailed among the BK members.
[4] The applicant alleges that, in
March 2004, almost two years after the death of his younger brother, some BK
members came to his home to recruit him. If he would not consider joining the
group, they told him, he would suffer the same fate as his brother. Following
this visit, the applicant explained to the Board, he did not go to the police
station to lodge a complaint against these members out of fear that the police
authorities would perceive him as being himself a member of BK.
BOARD’S DECISION
[5] The very short decision of the
Board, the reasons of which fill but two pages, addresses solely the question
of the protection of the state.
[6] Relying on the general principles
laid down in Kadenko v. Canada (Minister of Citizenship and Immigration),
[1996] F.C.J. No. 1376 (F.C.A.) (QL), 206 N.R. 272 and Canada (Minister of
Employment and Immigration) v. Villafranca, [1992] F.C.J. No. 1189 (F.C.A.)
(QL), 150 N.R. 232, the Board held that it was inappropriate to allow the claim
for protection. The Board said the applicant had not discharged his onus of
proof to refute “the presumption that the authorities of his country were
unable to protect him, by providing clear and convincing evidence”. Indeed, in
the Board’s opinion, “as the State was not the persecutor, the claimant should
have pushed farther with his claim for protection with the authorities in his
country.” And the Board explains in its reasons: “Unless he himself is a
terrorist, ... he could have obtained assistance from the authorities in his
country.”
ANALYSIS
[7] In Chaves v. Canada (Minister of
Citizenship and Immigration), [2005] F.C.J. No. 232, at paras. 9-11 (F.C.)
(QL), 2005 FC 193, Madam Justice Tremblay-Lamer held, after having conducted a
comprehensive review of the cases and the pragmatic and functional criteria,
that the applicable standard of review in questions affecting state protection
was that of reasonableness simpliciter. I accept her analysis.
[8] The Federal Court of Appeal ruled
in Villafranca, supra, at paragraph 6:
The burden of showing that one is not able
to avail oneself of the protection of one’s own state is not easily satisfied.
The test is an objective one and involves the claimant showing either that he
is physically prevented from seeking his government’s aid (clearly not the case
here) or that the government itself is in some way prevented from giving it.
[9] In Canada (Attorney General) v.
Ward, [1993] 2 S.C.R. 689, 153 N.R. 321, at para. 49, the Supreme Court of
Canada ruled that, when state protection might reasonably be forthcoming, the
Board could draw an unfavourable inference from the applicant’s failure to seek
state protection:
Like Hathaway, I prefer to formulate this
aspect of the test for fear of persecution as follows: only in situations in
which state protection “might reasonably have been forthcoming”, will the
claimant’s failure to approach the state for protection defeat his claim. Put
another way, the claimant will not meet the definition of “Convention refugee”
where it is objectively unreasonable for the claimant not to have sought the
protection of his home authorities; otherwise, the claimant need not literally
approach the state.
[10] In Kadenko, supra, we
can read at paragraph 5:
When the state in question is a democratic
state, as in the case at bar, the claimant must do more than simply show that
he or she went to see some members of the police force and that his or her
efforts were unsuccessful. The burden of proof that rests on the claimant is,
in a way, directly proportional to the level of democracy in the state in
question: the more democratic the state’s institutions, the more the claimant
must have done to exhaust all the courses of action open to him or her (See Minister
of Employment and Immigration v. Satiacum (1989), 99 N.R. 171, at p.176
(F.C.A.), approved by Canada (Attorney General) v. Ward, [1993] 2 S.C.R.
689, at p.725).
[11] In the case at bar, counsel for the
applicant argues that it was not objectively unreasonable for the applicant not
to appeal to the police, who might have suspected him of belonging to or being
associated with a terrorist organization. He argues as well that the applicant
did not need to demonstrate that the Indian authorities were unable to protect
him; he needed only to demonstrate that it was not unreasonable in the
circumstances not to have wanted to seek the protection of the Indian
authorities.
[12] However, counsel for the respondent,
who relies on the case law cited earlier, argues that, except in situations of
complete breakdown of the state apparatus, it should be assumed that the state
is capable of protecting a claimant. In this respect, he points out that the
applicant does not fear the police but rather the members of BK. Now, the
documentary evidence shows that the Indian state is fighting terrorism and is
capable of protecting its nationals. The applicant is in a different situation
from that of his younger brother, who was murdered by BK members. He should
have gone to the police when he was threatened by BK members. The respondent’s
counsel argues that the Board considered the applicant’s explanations as to why
he did not complain to the police. Even if the formulation of the test is
somewhat awkward, the Board did apply the right test. Moreover, counsel says,
the Board was not required in this case to deal specifically with section 97 of
the Act.
[13] The decision in question seems
unreasonable to me. I adopt all of the arguments presented by the applicant’s
counsel. It is clear that the Board misformulated the applicable test in this
case when it stated in its reasons that the burden was on the applicant “to
contest the presumption that the authorities of his country were unable
to protect him” (my emphasis). In view of the fact that the police had not
wanted to intervene following the death of the applicant’s younger brother and
that it might take him to be a sympathizer of the BK members, the Board should
instead have asked itself whether it was objectively unreasonable that he did
not seek the protection of his country of origin. The Board never answered this
question. Furthermore, given the extremely cursory nature of the reasons given
by the Board and the absence of any analysis of the applicant’s personal
situation, I am unable to validate the Board’s general finding that the claim
for protection under sections 96 and 97 of the Act is unfounded. The Board
wrongly suggests that if the applicant is not a terrorist, he can obtain the
assistance of the police. But the applicant did not have to be a terrorist, it
was enough that the police had reasons to believe that he might be a terrorist.
And since his younger brother was and had been associated with the terrorists,
it was reasonable for the applicant to suggest to the Board that the police
could have reasons to associate him with the same terrorist group to which his
younger brother had belonged. Moreover, it seems clear that the Canadian
authorities in this case wanted to ensure that the applicant was not linked to
BK members. The applicant had testified that the police had done nothing to
protect his brother, and as a result he was assassinated by BK members who
considered him a traitor. In conclusion, it was not unreasonable for the
applicant not to go to the authorities of his country and the Board’s decision
must accordingly be set aside.
ORDER
THE COURT ALLOWS the application for
judicial review, sets aside the decision dated July 27, 2005, and refers the
matter back to the Board for redetermination by another member. No question of
general importance was raised in this case and none will be certified by the
Court.
“Luc Martineau”
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